Kennedy v. Louisiana (07-343)

CRUEL AND UNUSUAL PUNISHMENT, DEATH PENALTY, NON-HOMICIDE

A Louisiana jury found Patrick Kennedy guilty of aggravated rape of his eight-year-old
stepdaughter under Louisiana's aggravated rape
statute. This statute provided a
sentence of death for the rape of a child under twelve years of age. After finding aggravating circumstances, as
required by Louisiana
law, the jury recommended that Kennedy be sentenced to death. After the Louisiana
Supreme Court affirmed his conviction and sentence, Kennedy petitioned the United States Supreme Court to
invalidate the sentence on either of two grounds: first, that imposing a death sentence for
rape, where the victim does not die, constitutes disproportionate, and
therefore "cruel and unusual punishment" under the Eighth
Amendment; second, that the aggravating circumstances in the case-that the
offender was perpetrating an aggravated rape and the victim was under twelve
years old-merely repeated elements of the underlying crime and therefore did not
sufficiently limit eligibility for a death sentence to avoid arbitrary
sentencing. Kennedy's first contention
asks the Court to revisit its decision in Coker
v. Georgia, which invalidated, on Eighth Amendment grounds, a death
sentence for the rape of a sixteen-year-old.

Issue(s)

Is it cruel and unusual punishment under the Eighth Amendment to sentence a
person to death solely for the rape of a child?
If not, does Louisiana's capital rape law nevertheless violate the
Eighth Amendment by failing to providing sufficient narrowing guidance to
juries concerning who, among those guilty of this crime, should be eligible for
the death penalty?

Facts

The following facts are taken from the opinion of the Louisiana Supreme
Court, State v. Kennedy,
957 So.2d 757 (La.
2007), and the Verdict, Agreement and Settlement of the District Court in
this case, 2003 WL 2473647:

In 2003 a jury in the district court of the parish of Jefferson, Louisiana, found Patrick
Kennedy guilty of the 1998 rape of his then eight-year-old stepdaughter. In line with the jury's recommendation, the
court sentenced Kennedy to death.

The State had charged Kennedy with aggravated
rape of a child under Louisiana's
capital rape statute, R.S. 14:42 D.(2). At the time of Kennedy's trial, this statute made
the death penalty (i.e., a "capital verdict") available for defendants who
raped a child under twelve years of age.
The alternative sentence was life imprisonment at hard labor without
parole. The district attorney had sought
the death penalty in Kennedy's case.

In the sentencing phase of the trial, the jury
found two aggravating circumstances-the offender was engaged in the
perpetration of aggravated rape and the victim was under twelve years old. A finding of at least one statutory aggravating
circumstance is necessary before a court can impose a death sentence,
according to a separate
Louisiana law.

Kennedy appealed his conviction and sentence to
the Louisiana Supreme Court. Among his
sixty-nine allegations of error, Kennedy claimed that his death sentence
violated the Eighth
Amendment's prohibition against cruel and unusual punishment because it was
a disproportionate penalty for a crime that did not result in loss of
life. In its 1977 decision, Coker
v. Georgia, the United States
Supreme Court had struck down a death sentence for the rape of a
sixteen-year-old on Eight Amendment grounds.

Kennedy also objected to the procedure Louisiana used to
determine his eligibility for the death penalty-specifically, the means of
satisfying the state's "aggravating circumstances" requirement. Both
aggravating circumstances the jury had found had simply restated elements of
Kennedy's crime. Kennedy said the
procedure therefore did not sufficiently narrow the court's discretion to
ensure that the death penalty wouldn't be imposed arbitrarily and
capriciously.

The Louisiana Supreme Court affirmed the district
court's conviction and sentence. It
rejected Kennedy's claim that imposing the death sentence solely for rape was
inherently unconstitutional, as a disproportionate penalty. The court reasoned that Coker had addressed only the rape of an adult. The Louisiana
court also said evidence of public attitudes (which the U.S. Supreme Court
looks to in determining sentences' proportionality) supported allowing death
sentences for rape of a child.

The Louisiana Supreme Court said four states in addition to Louisiana
had recently allowed the death penalty for such crimes. The Louisiana
court acknowledged this number was small, but emphasized the emergence of a trend
toward making rape of a child a capital crime.
The court also looked at an increase in the availability of the death
penalty for other non-homicide crimes, such as espionage and drug trafficking. Again, the court noted the trend was toward expanding
availability of the death penalty for non-homicides.

The
Louisiana Supreme Court also rejected Kennedy's argument that the aggravating
circumstances used in the case did not sufficiently narrow the group of persons
eligible for death sentences for this crime.
The court said Louisiana's
child rape statute itself provided the necessary narrowing of the eligible
group. The court said that where a
statute itself narrows the group of death-penalty-eligible defendants, the
United States Supreme Court has
allowed courts to rely on aggravating circumstances that simply repeat
elements of the crime.

Kennedy petitioned the United States Supreme
Court for a certiorari. The Court granted certiorari on January 4,
2008, on the two questions noted above.

Discussion

Patrick Kennedy is the first defendant in decades to be sentenced to death
for rape, and the United States has not
executed anyone for a crime other than murder since
1964. Since Kennedy's conviction, Louisiana has placed a second convicted
person on death row for rape of a child.
So far no other state judiciaries have followed Louisiana's lead. Nevertheless, several states and the federal
government have recently enacted laws that allow death sentences for
non-homicides, including not only rape of a child, but also espionage and drug
trafficking. The United States Supreme Court has not
ruled on these recent enactments-Louisiana's Kennedy decision represents the first death sentence handed down
under the current laws.

Through the mid-twentieth century, several states did impose the death
penalty for non-homicide crimes, including rape, kidnapping, and felony
murder (death inflicted during commission of another felony, regardless of the
defendant's direct responsibility for the victim's death). But in the mid-1970s, the Supreme Court overturned
several state death sentences for such non-homicide crimes. In Coker
v. Georgia, the Court struck down a death sentence for the rape of a
sixteen-year-old girl and held that imposing the death penalty for rape of an
adult that did not result in death was grossly excessive and
disproportionate-and therefore "cruel and unusual"-punishment under the Eighth
Amendment.

In Trop
v. Dulles, the Supreme Court said that its judgment of what constituted
cruel and unusual punishment was based on "the evolving standards of decency
that mark the progress of a maturing society."
The Supreme Court emphasized in Coker that its determination of those standards would be guided by objective evidence
of the country's current views. This
evidence included both the number of states that allowed the death penalty for
the given crime and consistent trends in legislative enactments concerning the penalty. Further evidence came from jury sentencing
decisions in cases where the state had sought the death penalty for the crime
in question.

But the Court also allowed some scope for its independent judgment as
ultimate arbiter of a sentence's proportionality. In exercising that judgment, the Court has sought guidance from a wider array of sources, including professional societies and the
international community.

In deciding Kennedy v. Louisiana,
the Court will first check in with the American public. What will the Court see
when it looks for objective evidence of U.S. standards of decency on
penalizing rape of a child?

According to the Louisiana Supreme Court and the Louisiana district attorney, it will see a
consistent recent trend in favor of allowing death sentences for such crimes. Nevertheless, the total number of states with
such provisions is still small. The
Death Penalty Information Center's information shows five states with very-recently-enacted laws making rape of a child a capital crime. Several of these states allow the death
penalty only if the defendant had a previous conviction for a similar offense.

The New York
Times notes the trend toward
allowing the death penalty for rape of a child is a response to public outcry
against sex crimes victimizing children. States
supporting Louisiana seem to bear this out, as they note the "unspeakable"
and "irreparable" nature of the crime of child rape. Such outrage has also found expression in legislation
concerning registering, monitoring, and punishing sex offenders (see, e.g., Megan's Law). One model statute, Jessica's Law, which has been enacted
with some variation in a number of states, provides for monitoring of released
sex offenders and mandatory minimum sentences for rape of a child. When Texas
enacted its version of Jessica's Law, it added a capital punishment provision
for repeat offenders. An
amicus brief submitted in this case by various social worker organizations
and anti-sexual-assault groups expresses concern about making child rape
without murder a capital crime. It
argues that such laws will be counterproductive for two main reasons. First, they will discourage victims from
coming forward where the perpetrator is a relative. Second, they will remove any disincentive the
perpetrator has to killing the victim. In another
brief, the National Association of Criminal
Defense Lawyers raises questions about the accuracy of convictions for
child rape, based primarily on children's susceptibility to suggestion. The brief argues that these questions argue
for withholding the ultimate, irreversible punishment of death in such cases.

Beyond changes in punishment for rape of a child, many states and the
federal government have enacted death penalty
provisions for other non-homicide crimes, ranging from drug-trafficking to
treason. Louisiana says these laws provide even
stronger evidence, in both absolute numbers and trend, in support of allowing
death sentences for non-homicides.

At the same time, both the Supreme Court and the rest of world seem to be
moving in the opposite direction. In
2002, the Court
invalidated use of the death penalty for mentally retarded persons. In 2005, the Court did the same for defendants who were juveniles at the time of their crime. Britain has not authorized the
death penalty for rape since 1841, according to the British Law Association amicus
brief in this case, and no Western democracy currently does so. The
Supreme Court has paid attention to such international norms in its recent
death penalty decisions (see Roper v.
Simmons, section IV). However, not all of the
Justices agree that such norms are appropriate reference points for the
Court's Eighth Amendment analysis.

Analysis

Does the Eighth Amendment Allow Capital Punishment for Child Rape?

Kennedy argues that
the Eighth
Amendment will not tolerate imposition of the death penalty for rape of a
victim of any age. Louisiana contends that the death penalty is
not cruel and unusual punishment for the rape of a child.Kennedy reads Coker
v. Georgiaas disallowing capital punishment for crimes other than
murder. 433 U.S. 584 (1977); Brief
for Petitioner at 19-27. According to Kennedy, Coker categorically states that if a criminal did not take a human
life, the death penalty is disproportionate. See Brief
for Petitioner at 29-21. Kennedy emphasizes that Coker did not distinguish adults from children. Id. at 22. In contrast, Louisiana narrowly reads Coker to hold that the Eighth
Amendment will not tolerate capital punishment for the rape of an adult woman. See Brief
for Respondent at 25. Louisiana
stresses that Coker contained fourteen
references to an "adult woman" in its concurring, dissenting, and plurality
opinions. Louisiana contends that these
references imply that the permissible punishment for rape of a child remains an
outstanding question under Coker. Id. Louisiana
cites several other State supreme courts that have interpreted Coker in this way. See id. at 27-28 (citing rulings in Georgia, Mississippi,
and Florida).

Additionally, Kennedy
and Louisiana
differ concerning the implications that treatment of other non-homicide crimes
have for the constitutionality of capital child rape laws. SeeBrief
for Petitioner at 26; Brief
for Respondent at 29. Kennedy argues
that crimes that are not person-on-person (i.e., terrorism, espionage, air
piracy) are not in the same category as murder.
Therefore, imposing the death penalty for these crimes does not
contradict the what he argues is the central theme of Coker, that the only person-on-person crimes for which the death
penalty is appropriate are those resulting in death. Brief
for Petitioner at 26. Kennedy supports his argument against expanding review
to include non-person-on-person crimes by noting the Coker Court's refusal to broaden the scope of its decision in this
way. Id. at 32.

Conversely, Louisiana focuses on the
fact that prosecutions for non-person-on-person crimes are similar to murder
prosecutions in that they focus on the culpability of the individual. Brief
for Respondent at 29. Louisiana points out that in decisions
determining that robbery and kidnapping are not constitutionally eligible for
the death penalty, the Court announced no bright-line rule that the absence of
death in these crimes was decisive. Id. at 31. Rather, the Court first determined that the
death penalty was disproportionate to the underlying crimes and then pointed
out that one factor was the absence of death. Id. (citing Enmund
v. Florida, 458 U.S.
782 (1982), Tison v. Arizona,
481 U.S.
137 (1987). In Louisiana's view, the Court confirmed that,
compared to these crimes, rape is the "ultimate violation of self" short of
homicide. Therefore, rejection of the death penalty for other non-homicide
offenses does not necessarily mean that the death penalty is an unconstitutional
punishment for rape. SeeBrief
for Respondent at 31. Louisiana notes that fifteen
jurisdictions allow capital punishment for non-homicide crimes. See id. at 39. Other states have pending legislation
allowing a death sentence for non-homicide crimes; if all such legislation passes,
46 percent of the states will allow the death penalty for non-homicide crimes. Id. at 41.

The Roper-Atkins Two Prong
Analysis

The Court's
outlined its process of analysis in death penalty cases in Roper v.
Simmons, 543 U.S. 551 (2005), and Atkins v. Virginia,
536 U.S. 304 (2002). These cases establish a two-pronged method of evaluation. SeeState v. Kennedy,
957 So.2d 757, 782 (2007). First, the Court examines the "objective indicia
of consensus" to determine if U.S.
jurisdictions tend to allow capital punishment for a crime. Id.Second,
the Court exercises its "independent judgment" as to whether capital punishment
is disproportionate according to the "evolving standards of decency"
contemplated by the Eighth Amendment.Id.

Kennedy argues that
the first prong of the Roper-Atkins schema
calls for reversal in this case. Brief
for Petitioner. He says that
there is a national consensus against punishing rape by death. See id. at 28-30. Kennedy points out that in Enmund
v. Florida, the Court found that eight states' authorization of the
death penalty for felony murder did not establish a national consensus. See 458 U.S.
at 789; Brief
for Petitioner at 29. Further, Roperand Atkinsfound
execution of juveniles and mentally retarded individuals, respectively,
unconstitutional despite authorization under 21 different state schemes. SeeBrief
for Petitioner at 29. Finally, Kennedy underscores that of the five
states authorizing capital punishment for rape, the four others (South Carolina, Oklahoma,
Montana, and Texas) require prior conviction for a sexual
crime. See id. at 30. Further, Kennedy finds the "exceptionally
infrequent" use of the death penalty undermines those laws that remain on the
books. Brief
for Petitioner at 33. No one has
been sentenced to death for any kind of rape for over 43 years. Id. In 180 rape prosecutions, Louisiana prosecutors have sought the death
penalty only five times. Id. at 34. Kennedy argues the trend, contrary to the Louisiana Supreme Court's assertion, is away from allowing the death penalty,
and, finally, that the international trend is away from the death penalty as
well. Id. at 36; seeCoker, 433. U.S. at 596 n.10.

Louisiana
counters that "evolving standards of decency" require affirmation of the
Louisiana Supreme Court's decision.Brief
for Respondent at 32. First, Louisiana underscores that legislative
acts are presumed to be valid, because legislatures are the representatives of
the people. Id. Further, capital punishment is an option for some crimes in 37 American
jurisdictions (including the federal government). Id. at 33. Louisiana
notes an upward, if slight, trend of states allowing capital rape: five states
now have some form of this provision (Georgia,
Oklahoma, Texas,
South Carolina, and Louisiana),
and three more states have legislation in the works (Alabama,
Mississippi, and Missouri). Id.at 36-38. Finally, Louisiana
points out that finding a practice unconstitutional simply because it is rare
goes against the nature of the "evolving standards" prong of the Atkins-Roper test, because standards
change. Id. at 36.

Kennedy argues
that the second prong of the analysis likewise requires reversal because the
Court's independent jurisprudence already supports the proposition that the
death penalty for rape is unconstitutional. See Brief
for Petitioner at 38. The Court looks for the twin factors of
retribution and deterrence in determining whether a punishment is, in its independent
judgment, proportionate to a crime. Kennedy argues that both factors favor of
reversal in this case. Id. Kennedy underscores the idea
that because capital crimes require additional resources to prosecute, prosecutors
reduce charges in serious rape cases to avoid the overload, thereby reducing
any deterrent effect the 1995 amendment may have had. See id.at 39. Finally, Kennedy
focuses on the special risk of wrongful execution in capital rape cases. See
Atkins, 536 U.S.
at 321. He argues that plea bargains mean that those accused of capital
rape who maintain their innocence are in fact those most likely to receive the
death penalty. See id.

Louisiana argues
that as the Court's prior jurisprudence is silent on capital rape, its
independent judgment in this case may legitimately lead to a finding that
capital rape is constitutional.See Brief
for Respondent at 49-50. Louisiana also highlights the fact that in
five capital rape cases, two returned death sentences. Further, of 180 capital
rape prosecutions cited by Kennedy, Louisiana says 112 do not provide a clear
indication concerning the effect of plea bargains on the number and disposition
of death-penalty cases. Id. at 45. This supports the proposition that neither juries nor prosecutors
find the death sentence disproportional. See id. Finally, to emphasize the lifetime impact of sexual abuse, Louisiana cites high physical and
psychological disorder rates among victims, with a correlation between more
severe abuse and more significant long-term harm. See id.at 53-55.

Does Louisiana's
Capital Rape Law Sufficiently Narrow the Class?

Kennedy contends
that the Supreme Court has long been wary of allowing unguided jury discretion in
capital sentencing because of the potential for abuse and discriminatory
application. SeeBrief
for Petitioner at 41-42. Kennedy
therefore argues that aggravating factors that duplicate an element of the
crime should only pass constitutional muster where the definition of the crime
itself sufficiently narrows the class of death-eligible offenders. SeeId. at 46, Lowenfield v. Phelps 484 U.S.
231 (1988). Generally, per Kennedy, an aggravating circumstance is the path
toward a legitimate (i.e., sufficiently narrow) class. See Brief
for Petitioner at 43. But the aggravating factors for capital rape in
Louisiana only restate the crime of conviction and one of its elements. Id. at 44. The age of the victim
does not appropriately narrow the class because it allows all defendants charged with the crime to be subject to the death
penalty. Id. at 44, 47. Kennedy maintains
that under the Supreme Court's decision in Lowenfield v. Phelps,
this aggravating factor is not constitutionally
sufficient because it adds nothing "above and beyond" the offense itself. See id. at 47; 484 U.S. 231,
244-46. The potential consequences
of such insufficiently constrained discretion are delineated in the ACLU-NAACP
amicus brief, which emphasizes historic and lingering racial bias as a
factor in death penalty sentencing. Brief Amicus
Curiae of the American Civil Liberties Union, et al., at 7, 14.

Louisiana counters that its law sufficiently
narrows the class of offenders because of the restrictive definition of the
offense of capital rape.Brief
for Respondent at 57. Court precedent under Lowenfield v.
Phelpsrequires capital sentences to be part of a logical scheme in
which the imposition of the death penalty is justified and limited to a narrow
class. 484 U.S.
231 (1988). According to Louisiana, Section 14:42 satisfies Lowenfield'sstandard by restricting the death
penalty to rapes consisting of anal or vaginal intercourse with a child twelve
or under. Id. at 58; La. R.S. 14:42(A)(4). There is no need for an aggravating
circumstance outside of the criminal definition itself in Louisiana's view. See id.

Conclusion

The United States
Supreme Court's decision in this case will clarify the constitutionality of
capital child rape statutes. Whatever
the outcome, the decision will have far-reaching consequences for the
independence of State legislatures regarding the imposition of the death
penalty. If Kennedy's arguments are
persuasive, and the Court accepts a broad reading of Coker
v. Georgia, the capitalization of person-on-person non-homicide crimes
will be beyond the reach of State legislatures. If Louisiana's
arguments are persuasive, Coker's holding
will at the least be narrowed to prohibit capital punishment for rape of an
adult woman, leaving State legislatures free to capitalize or re-capitalize
other non-homicide crimes. Such a
holding could rely either on a new interpretation of Coker itself or on
application of Coker's criteria to contemporary standards of decency. Alternatively, the Court could agree with
Kennedy's second argument-that Louisiana
has not provided a sufficient hedge against arbitrary exercise of
discretion.